Using Competition Law to Promote Access to Medicines

Sean Flynn
August 13, 2008

This paper, to be published in the forthcoming book From Intellectual Property to Access to Knowledge by Zone Press, argues that competition law can and should be used to promote access to knowledge goals.

The article argues that a common conception of competition laws and intellectual property laws as in irreconcilable conflict, necessitating blanket exclusions of IP from competition law regulation, is wrong headed. Competition and intellectual property laws serve similar ends of increasing economic productivity and access to new goods. When intellectual property fails to serve the end of net increases in economic productivity, i.e. by creating more barriers to access to current technology and production than it creates incentives for additional innovation and creation, competition law justifiably limits IP rights. Indeed, there is a long history in the U.S. and other countries of using competition law to limit consumer harm from excesses of IP and other property holders, including duties to share access with potential competitors.

Shifting from the question of whether competition law can limit IP rights to when competition law should regulate intellectual property, the article argues for recognition of a new category of "essential IP" for which open licensing duties would be frequently required under refusal to license and "essential facility" competition law doctrines. A key example of such essential IP is when IP prohibits competition in the supply of goods or information that is essential to the social or economic development of a country, including essential medicines, software or learning materials. In such instances, profit maximizing actions by the holders of exclusive IP rights will cause far more consumer harm through restricted access than it benefits consumers in the form of incentives for future innovation.

The article concludes by summarizing some of the ways that A2K advocates are using competition law discourse and institutions to limit the scope of IP rights, including in cases that lay the groundwork for pushing a more robust essential IP theory of the kind articulated in the first two parts of this article.

Full text of the article is available here. Please forward any comments or suggestions to sflynn@wcl.american.edu.

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